Tuesday, February 10, 2015

Roy Moore is Right: It is the Supreme Court, not Moore, who is showing disdain for the law

Are you showing disdain for the rule of law if you refuse to cooperate with a body that shows disdain for the rule of law?

The New York Times says the following about Alabama Chief Justice Roy Moore's ... "The actions of Alabama’s demagogic chief justice, Roy Moore, show an outrageous disdain for the rule of law."

Really? Then what is the U.S. Supreme Court doing?

If anyone has shown "disdain for the law" it is the Supreme Court itself. There is literally nothing in the Constitution that justifies the Court in striking down the right of states to define marriage. In fact, Justice Anthony Kennedy, in his majority opinion in Windsor v. United States just last year—confused as it otherwise was—underscored the fact that states have exactly this right.

But now the Court, Kennedy at its head, is prepared not just to go beyond the "equal and coordinate" powers it was granted in the Constitution of 1887 it is about to violate, but is getting ready also to contradict its own statements in the decision it rendered only a little more than a year ago.

Anything is permissible in the cause of cultural disintegration.

Those who argue that the Court has the right to do what it is now about to do—and this, unfortunately, includes many conservatives—cannot find their reason in the Constitution itself. In fact, you will notice, if you read carefully, that they don't even attempt it. The only justification they do or can offer is that the Court itself says so: How do we know the Court has the right to do what it does? Because the Court says so.

And where, pray tell, does the Court derive the authority to determine its own power? Itself, of course. The proponents of this imperial view of the Court don't—and can't—justify this view of the Court's absolute Constitution authority on the basis of the language of the Constitution; it can only justify it by appeal to judicial rulings—rulings written by the Court.

It is an infinite jurisprudencial regress. In any other circumstance this would be considered completely circular reasoning, and if this kind of reasoning were being used to bring about conservative legal change, you can bet your bottom dollar that the New York Times would be pointing it out--and backing whoever was serving in the role of the liberal version of Roy Moore.

Under this view of the Court--that it is some kind of oracular body, causa sui in the derivation of its authority--it can literally justify anything it rules without rational justification. Not that such justification is not offered; it is. But that is only because the Court must keep up appearances.

By definition (this one, anyway), the Court can do no wrong.

The weak case for the Imperial Court (what Justice Antonin Scalia calls the "Black-Robed Supremacy") is that it is bound--not by the Constitution--but its own precedent. The strong case is that it is bound by nothing at all, except itself. It is this latter view we are seeing in all its malignancy now, as it prepares to defy its own precedent in Baker vs. Nelson which found there is no Constitution right to same-sex marriage.

Worst of all, under the Court's self-authorized view of itself promoted in self-serving places like the New York Times, there is literally no recourse if the Court abuses its Constitutional authority. There is no corrective because, by definition, there can be nothing to correct in an institution that defines what legal correctness is--unrestrained by actual Constitutional language.

Quite literally the only way to restrain the Imperial power of the Court is by doing exactly what Roy Moore is doing: by simply defying it.

There is precedent in our history for the defiance of authority, provided that those defying it declare the causes that impel them to do so. Among these are when forms of government become destructive of the rights the government is instituted to protect--among which is the right to be protected from abusive power.

When we become subject to "a long train of abuses and usurpations," it is our right, according to Jefferson, in fact our duty to "throw off such Government." and to provide "new Guards" for our future security.

While the Court can appeal to nothing in the actual language of the Constitution to warrant its historic decision to take away the right of individuals, through their elected representatives, to define marriage, Roy Moore has explicit warrant in the actual language of the Declaration of Independence for doing what he is doing.